COVID-19: THE LEGALITY OF PRESIDENT MUHAMMADU BUHARI'S LOCKDOWN ORDER

By

Taiye Adegoke and Kehinde Adegoke

Introduction

On Sunday 29 March 2020, the President of the Federal Republic of Nigeria, Muhammadu Buhari signed into operation the COVID-19 REGULATIONS 2020 (The Regulation) in which amongst other things, the President ordered the total lockdown of Lagos and Ogun States and the Federal Capital Territory (FCT). The regulation was part of the efforts by the Federal Government to fight the Coronavirus disease and stop and/or reduce drastically its spread in Nigeria. Since the said order had been issued, there have been mixed reactions from different quarters as to the legality or otherwise of the order. While some Nigerians see the President’s order restricting their movement in and around the state for 14 days as a step in the right direction towards putting an end to the aggressive Coronavirus disease (COVID-19) ravaging the world, particularly in Nigeria, some are of the opinion that the procedure for issuing same is illegal and lacks the requisite constitutional backings. The latter category is of the view that, regardless of the intention behind such order, it should not stand as it is not established on proper foundation and therefore impedes the fundamental human rights of Nigerians as contained in the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

In this article, we shall examine vividly the legality of the President’s order vis a vis all relevant statutes on the subject; we shall juxtapose the facts with the laws, with a view to reaching an informed conclusion. At the end of this intellectual voyage, it is hopeful that the debate on this issue shall have been laid to rest.

Constitutional Back-up for President Buhari’s Order

In Nigeria, the Constitution is the grundnorm. It is the law from which all other laws whether made by the National Assembly, State Assemblies or where ever draw their validity. The supremacy of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as amended) is sacrosanct. Section 1(1) provides for the supremacy of the constitution “and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria” Similarly, by Section 1(3) if any other law is inconsistent with the provisions of the constitution, the constitution shall prevail, and that other law shall to the extent of the inconsistency be void.

It is elementary knowledge that the major purpose of government, be it the legislature, executive or judiciary is to protect lives and property of its citizens. This has been given expression in Section 14(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as follows:

“the security and welfare of the people shall be the primary purpose of government.”

Whereas Section 4(2) of the constitution recognizes the power of the National Assembly to make laws for the peace, order and good government of the Federation or any part thereof, Section 5(1)(b) empowers the President to execute and maintain all laws made by the National Assembly. Therefore, any law made by the National Assembly pursuant to Section 4 must be executed and given effect by the executive under Section 5.

Fundamental Right to Freedom of Movement

The constitution in Section 41 guarantees freedom of movement for every citizen of Nigeria. The section provides as follows:

“(1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom”

Sections 41(2) and 45 contain the exceptions to section 41(1). Section 41(2) provides for exception where any law reasonably justifiable in a democratic society (a) imposes restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence; and (b) providing for the removal of any person from Nigeria to any other country (i) to be tried outside Nigeria for any criminal offence, or (ii) undergo imprisonment outside Nigeria in execution of the sentence of a court of law in respect of a criminal offence of which he has been found guilty.

More specifically and relevant in this context is section 45(1)(a) which expressly provides that:

“Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society –

(a)  In the interest of defence, public safety, public order, public morality or public health…”

From the above provisions, it is clear that the Constitution recognizes instances where the freedom of movement of a person(s) may be restricted. In other words, it is not an absolute right. Therefore, where a law is made by the National Assembly in order to protect public health, and such law allows for restriction of movement of citizens in certain cases, section 41 will not be offended. This takes us to the Quarantine Act of 1926 and the President’s regulation made pursuant thereto.

Is the President’s Order Made Pursuant to the Quarantine Act of 1926 Legal?

On 30th March, 2020 President Muhammadu Buhari signed the COVID-19 REGULATION 2020 (The Regulation) as a follow up to his speech given the previous day. The Regulation was made pursuant to THE QUARANTINE ACT (CAP Q2 LFN 2004) (The Act). The introduction of the Regulation reads as follows:

“In exercise of the powers conferred on me by Sections 2, 3 and 4 of the Quarantine Act and all other powers enabling me in that behalf, I, Muhammadu Buhari, President of the Federal Republic of Nigeria, hereby declare COVID-19 a dangerous infectious disease and make the following regulations:”

Before proceeding further, it is imperative to reproduce the long title and general purpose of the Act as follows:

“An Act to provide for and regulate the imposition of quarantine and to make other provisions for preventing the introduction into and spread in Nigeria, and the transmission from Nigeria, of dangerous infectious diseases.”

From the above, it is apparent that the purpose of the Act is not only to impose quarantine but also to ensure the prevention of dangerous infectious diseases into and out of Nigeria. The Act in Section 2 defines “dangerous infectious disease” to mean cholera, plague, yellow fever, smallpox and typhus, “and includes any disease of an infectious or contagious nature which the President may, by notice, declare to be a dangerous infectious disease within the meaning of this Act.” Even though Coronavirus disease is not specifically listed in that section, it is clearly within the omnibus phrase “any disease of an infectious or contagious nature” as it is not in dispute that COVID-19 is an infectious disease of a contagious nature. The Act was made in 1926, when Coronavirus, even if it existed, was not prominent as to be specifically listed.

Having established that Coronavirus disease (COVID-19) is an infectious disease of a contagious nature within the meaning of the Act and that the provisions of the Act can be legally invoked for the purpose of preventing the introduction into and spread in Nigeria of Coronavirus disease being an infectious disease, let us now examine the procedure laid down and permissible under the Act in order to invoke its operation.

By Section 3 of the Act, the President may, by notice, declare any place whether within or outside Nigeria to be an infected local area, and thereupon such place shall be an infected local area within the meaning of the Act. By reason of the fact that Lagos State and the FCT have recorded the highest number of COVID-19 cases in Nigeria so far, probably due to the population density and bubbling nature of these places, and based on the advice of the Federal Ministry of Health and the NCDC, the President has, pursuant to the power donated to him under Section 3 of the Act, declared Lagos and Ogun States and the FCT as infected local areas. Recall that by Section 2 of the Act, a “local area” could mean “a well-defined area, such as a local government area, a department, a canton, an island, a commune, a town, a quarter of a town, a village, a port, an agglomeration, whatever may be the extent and population of such areas.”

By Section 4, the President may make regulations for all or any of the following purposes-

(i)   Prescribing the steps to be taken within Nigeria upon any place, whether within or without Nigeria, being declared to be an infected local area;

(ii) Preventing the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place within Nigeria; 

(iii) Generally, for carrying out the purposes and provisions of this Act.  

Now let us look critically at each provision and how it relates to President Muhammadu Buhari’s regulations. The first is that the Act empowers the President to make regulations prescribing the steps to be taken within Nigeria upon any place, whether within or without Nigeria, being declared to be an infected local area. In complying with this provision, President Muhammadu Buhari has, as the President of Nigeria made an order restricting movement in Lagos, Ogun and Abuja as a proactive step taken upon Lagos, Ogun (by reason of its proximity to Lagos and high traffic  between the two States) and Abuja, which though are within Nigeria, have been declared to be infected local areas. This step is taken in order to prevent further spread of the virus in accordance with the purpose and intendment of the Act. Please see Section 4(a) of the Act.

Second is that the Act empowers the President to make regulations preventing the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place within Nigeria. By Regulation 1(2) of the Regulation, “All citizens are to stay in their homes. Travel to or from other states should be postponed. All businesses and offices within these locations should be fully closed during this period”. Undoubtedly, the President had invoked the provisions of Section 4(c) of the Act to place a ban on travel to and from other states in Lagos, Ogun and Abuja for 14 days in order to curtail the spread of Coronavirus disease which is much more concentrated in these cities, to other states with less or no cases. Please see Section 4(c) of the Act.

Finally, the Act in Section 4(g) empowers the President to make regulations generally for carrying out the purposes and provisions of the Act. The purpose of the Act as reproduced earlier is to regulate the imposition of quarantine and to make other provisions for preventing the introduction into and spread in Nigeria, and the transmission from Nigeria, of dangerous infectious diseases. Therefore, the Regulation made by the President is also made pursuant to Section 4(g) of the Act in order to effect the purpose of the Act which is to prevent the spread in Nigeria, of the Coronavirus disease which is a very dangerous infectious disease. Recall that the World Health Organization had declared COVID-19 a pandemic.

Having examined the procedure to be taken under the Quarantine Act, it is important to quickly mention that the Act recognizes that the President and the Governor of each State should work hand in hand to give effect to the provisions of the Act. Section 6 of the Act states that:

“The President and within each State, the Governor thereof, may provide such sanitary stations, buildings and equipment, and appoint such sanitary anchorages as he may think necessary for the purposes of this Act.”

Similarly, Section 8 provides as follows:

“If and to the extent that any declaration under section 2 or 3 of this Act has not been made, and to the extent that regulations under section 4 of this Act have not been made by the President, power to make any such declaration and to make such regulations may be exercised in respect of a State, by the Governor thereof as fully as such power may be exercised by the President, and subject to the same conditions and limitations.”

The import of the above provisions is that the Act allows the President and the Governor of each State to concurrently exercise the powers provided under the Act. This is possibly why the President states in Regulation 1(3) of the Regulation that “The Governors of Lagos and Ogun States as well as the Minister of the FCT have been notified.” Please see Regulation 1(3) of the Regulation.

Please note that the power of the President to make such declaration and regulations under the Act shall supersede that of a Governor of a State. Please see Section 8 of the Act. Where the President fails to exercise the power, the Governor of a State may exercise same in respect of his State. For example, in some States like Oyo, Bauchi and Bayelsa, even though the President’s lockdown order does not extend to those States, their respective Governors have invoked their powers under the Quarantine Act to impose restriction on the movement of people. This is also in accordance with Section 5(2) and (3)(a) of the CFRN, 1999 (as amended). Clearly, the President has the power to restrict movement under the Act and such powers can be exercised by both the President and State Governors in respect of their respective States.

It is to be noted that the regulations made by President Muhammadu Buhari is not a declaration of state of emergency under Section 305 of the CFRN, 1999 (as amended). Where this was the case, the concurrence of both houses of the National Assembly would be required. The declaration of a state of emergency, if done by the President, must be done in accordance with the procedure stipulated in Section 305. The procedure is express and simply requires that the President may by instrument published in the Official Gazette of the Government of the Federation issue a Proclamation of a state of emergency in the Federation or any part thereof. Please see Section 305(1).

The President shall immediately after the publication, transmit copies of the Official Gazette of the Government of the Federation containing the proclamation including details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation. Please see Section 305(2).

Thus, what President Muhammadu Buhari made is clearly not a Proclamation under Section 305, rather it is a Regulation made pursuant to the Quarantine Act which is the applicable law in Nigeria in the fight against COVID-19.

Conclusion

Having carefully laid the proper constitutional foundation at the beginning of this article, it is no longer in dispute that the Quarantine Act Cap Q2 LFN, 2004 is the applicable law to regulate and prevent the continued spread of the dangerous COVID-19. Section 45(1)(a) of the CFRN, 1999 (as amended) gives the President the right to invoke the Quarantine Act to temporarily relax the fundamental right to freedom of movement of Nigerians guaranteed under Section 41 of the Constitution for the purpose of preventing the spread and transmission of the dangerous Coronavirus disease. Thus, having declared COVID-19 as an infectious disease of a contagious nature and in line with the ultimate purpose of the Quarantine Act Cap Q2 LFN 2004, President Muhammadu Buhari has so far acted in accordance with the executive powers of the federation conferred on him under Section 5(1) of the CFRN, 1999 (as amended) as well as the provision of Section 14(2)(b) which provides that the security and welfare of the people shall be the primary purpose of government.

References

·      Constitution of the Federal Republic of Nigeria, 1999 (as amended).

·      COVID-19 Regulations, 2020.

·      Quarantine Act Cap Q2 LFN, 2004.

Authors

Taiye Adegoke, B.A (Ife); LL.B (Ibadan); B.L

University of Ibadan (First Class Honours)

Tel: +234 803 236 7927

Email: [email protected]

LinkedIn: Taiye Vincent Adegoke

Kehinde Adegoke, B.A (Ife); LL.B (Ibadan); B.L

University of Ibadan (First Class Honours)

Tel: +234 813 088 9726

Email: [email protected]

LinkedIn: Kehinde Victor Adegoke